FCC Approves Net Neutrality Rules, Now the Fight Begins

The FCC approved strong openness rules for wired and wireless broadband connections to the internet Thursday, leaving the details of the rules open to public debate for the next 60 days. The move will gratify President Obama’s grassroots supporters and internet services like Google, but draw the wrath of large telecoms like AT&T and the wireless industry.

The FCC’s five commissioners unanimously agreed to expand and codify rules from 2005 that require cable and DSL providers to allow their customers to use whatever devices or online services they want so long as they don’t hurt the network. A similar rule applied to AT&T’s phone monopoly in the 1960s led to the fax machine, the football phone and the internet.

The 107-page FCC proposal (.pdf) was made public several hours after the vote. However, the rules are only a draft and will be subject to intense public debate and lobbying in the next 60 days. After that, the FCC will issue final rules, which will then likely face court and Congressional challenges.

The rules codify four old principles and introduce two new ones. Broadband providers must not block users from sending legal content on the net. They must let users run the applications and services they like and connect whatever devices they care to. And providers must not harm competition among ISPs or online services. The new principles require that broadband providers not discriminate against content services (i.e. block Skype because it competes with an ISPs voice service) and that they disclose to users and the feds how they manage their networks.

The rules would also explicitly extend beyond so-called wireline providers such as DSL and cable and apply to wireless internet services, such as 3G, satellite and WiMax. Providers would have leeway to shape or throttle traffic for network management purposes or to help police or “homeland security.”

Supporters and detractors have been bombarding D.C. this week with filings, press releases and reports in a final attempt to make the ostensible starting point of the discussion — the draft language of the recommendations — more amenable to their side. Not surprisingly, neither side is waiting to read and digest the text of the proposed rules before reacting to today’s vote.

The Wireless Association, which has battled furiously to keep the openness rules from being applied to 3G smartphone connections, quickly reacted, saying the rules could “stifle innovation and harm consumers.” CTIA all but promised it would sue, saying new rules would “degrade the value” of the public spectrum carriers have licensed.

The Open Internet Coalition, which counts Google and Facebook among its members, welcomed the vote.

“Today’s vote was the first step toward establishing enforceable protections for consumers accessing the Internet,” said the coalition’s executive director Markham Erickson. “Under the chairman’s leadership, we have cleared the first hurdle in this process, and are on the road towards creating a framework that promotes innovation and consumer choice on the internet.”

The proposed text of the rules:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.

2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.

3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content
providers.

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

6. Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.

Carriers, however, are still able use “reasonable network management” to control their networks. And the needs of law enforcement and “homeland security” also trump these rules.

Reasonable network management consists of: (a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices.

That leaves room for providers to filter viruses, throttle traffic during busy times and even block transmission of content they deem unlawful — from child pornography to unauthorized sharing of copyrighted works.